H.O. NO. 78-2

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWN OF KEARNY,

Public Employer,

-and-	Docket No. CU-77-26

KEARNY P.B.A., LOCAL 21,

Petitioner.

Appearances:

For the Petitioner

Norman A. Doyle, Jr., Esq.

For the Employee Representative

Schneider, Cohen & Solomon

(David I. Solomon, of Counsel)

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

A Petition for Clarification of Unit was filed with the Public Employment Relations Commission (the "Commission") on October 22, 1976, by the Town of Kearny (the "Town") seeking a clarification of a unit of employees represented by the Kearny P.B.A., Local 21 (The "PBA"). The Town seeks a determination which would exclude from the PBA unit all sergeants, lieutenants and captains employed by the Kearny Police Department. Pursuant to a Notice of Hearing, a hearing was held before the undersigned Hearing Officer on May 16, 1977, in Newark, at which all parties were given an opportunity to examine witnesses, present evidence, and argue orally. Briefs were submitted by the parties by June 28, 1977. Upon the entire record in this proceeding, the Hearing Officer finds:

1.	The Town of Kearny is a Public Employer within the meaning of the New Jersey Employer-Employee Relations Act (the "Act"), is subject to its provisions, and is the employer of the employees who are the subject of this proceeding.

2.	The Kearny P.B.A., Local 21, is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Town has filed a Petition for Clarification of Unit seeking exclusion of sergeants, lieutenants and captains from the unit represented by the PBA. The PBA asserts that it represents all policemen employed by the Town, excluding the Chief and Deputy Chiefs, and will not agree to the exclusion of the Superior Officers from its unit. Accordingly, there is a question concerning the composition of the negotiations unit and it is properly before the Hearing Officer for a Report and Recommendations.

The Kearny Police Department consists of a Chief, two Deputy Chiefs, ten Captains, eight Lieutenants, ten Sergeants, and ninety Patrolmen. All police officers except the Chief and Deputy Chiefs have been represented in a bargaining unit by the PBA in negotiations with the Town and contracts have been signed covering patrolmen and superior officers.

It is now asserted by the Town that the inclusion of superior officers in a unit with patrolmen creates an inherent conflict of interest detracting from the efficient administering of the police department. The Town further claims that the superior officers are supervisors within the meaning of the Act and on that basis must be excluded from the existing unit. The PBA alleges that the unit has been together since negotiations began with the passage of the Act, is an appropriate unit, and should be allowed to continue in its present form.

Supervisors

N.J.S.A. 34:13A-5.3 defines a supervisor as one "having the power to hire, discharge, discipline or to effectively recommend the same." N.J.S.A. 34:13A-6(d) provides in relevant part that "except where dictated by established practice, prior agreement or special circumstances, no unit shall be appropriate which includes 1) both supervisors and nonsupervisors...."

It was the testimony of Chief of Police Chester L. Potter that no one on the force, including the Chief, has any power to hire or discharge, and the record does not reflect any participation by superior officers in the hiring or discharge procedures of the police department.

Both the Chief and Sergeant Anthony Gouveia testified that a sergeant faced with a patrolmen not properly performing his duty will relay this fact to his lieutenant. A sergeant's disciplinary power consists of giving a verbal "chewing out," and in instances where a patrolmen reports for duty improperly attired, may send him home to change.1/ A Lieutenant may orally reprimand a patrolmen or if he feels it warranted, refer the matter to a Captain.

Once a matter reaches a Captain he is responsible for investigating the charge, and if he finds merit may fill out a form to initiate Civil Service proceedings against the police officer in question. The Chief has the decision whether to send the matter on to Civil Service or to hear it informally, or even dismiss the matter entirely.2/ Serious offenses may be heard by the Mayor and Council and others by the Police Committee which would accept the Chief's recommendation. Chief Potter testified that in his tenure as chief he had received about half-a-dozen disciplinary reports and had never varied his recommendation from the recommendation in the report.3/ He sees not only a captain's report but also reports by lieutenants and sergeants prepared at the direction of their immediate superiors.

Based on the foregoing discussion, the undersigned finds that Kearny police department superior officers are supervisors within the meaning of the Act. The power to directly act by sending men home or issuing verbal reprimands is not disputed. Moreover, while final authority to take more serious action may rest with the Police Committee, it accepts the Chief's recommendation, and although he testified that he reserves the right to disagree with a superior officer's recommendation should he feel it unwarranted, he does not actually do so. It seems clear that at least in matters not of the highest level of gravity (which go to the Mayor and Council) the superior officers have been effectively recommending discipline to the Chief and Police Committee.

Conflict of Interest

Absent a finding that the superior officers are supervisors, they still cannot appropriately be in a unit with patrolmen due to the existence of a conflict of interest. As set forth by the New Jersey Supreme Court in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971), if performance of the duties required of an employee creates an actual or potential substantial conflict of interest with other employees, than the requisite community of interest for their inclusion in the same bargaining unit does not exist.

The Commission set forth its approach to this problem regarding police and fire departments in In re City of Union City, P.E.R.C. No. 70 (1972). Except in cases of very small departments where a Chief may be able to run things alone, and where the duties of superior officers are insignificantly different from patrolmen, the distinction between superior officers and bank and file in quasi-military organizations should be recognized by the separation of these two groups for the purposes of formation of negotiations units.

As noted above, superior officers do play a significant role in the disciplinary procedures of the department, initiating reports of misconduct, conducting investigations of charges raised against patrolmen, issuing reprimands, and sending men home. This distinction begins with the rank of sergeant as testified by Sergeant Gouveia that he "leads" his men on his tour of duty.4/ The Rules and Regulations of the Kearny Police Department give superior officers authority over and responsibility for the men ranking below them and call for discipline and obedience to orders. These are all the kinds of factors that have generally led to the exclusion of superior officers from units with patrolmen.5/

Where the Commission has deviated from the general rule is in the case of very small departments where at most the difference in superior officers' duty from that of patrolmen was in acting in a dispatcher function.6/ This contrasts with Kearny force of over 100 men divided into Divisions and squads with separate precincts existing, and the superior officers having specific command responsibilities. Captains or in their absence, lieutenants, may alter the work assignments emanating from the Chief's office.7/

The actual and potential conflicts of interest arising from the above factors can in no way be said to be clearly de minimus and therefore the superior officers must be excluded from the unit containing patrolmen.

One further issue remains. The Act provides that supervisors may not be in a unit with non-supervisors "except where established practice, prior agreement, or special circumstances dictate the contrary..."8/ It is asserted by the PBA that such established practice exists in Kearny.

This Commission enunciated its standards for evaluation of claims of past practice in In re West Paterson Board of Education, P.E.R.C. No. 77 (1973).9/ What is necessary for a finding of established practice is a pre-1968 (the date of enactment of the Act) relationship containing the following requisite ingredients:

An organization regularly speaking on behalf of a reasonably well-defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now called negotiations) with an employer who engaged in the process with an intent to reach agreement.10/

What was specifically rejected as not constituting established practice was a situation in which an employee organization would request various improvements and the employer would consider such request privately before announcing his decision. This was precisely the pre-1968 situation in Kearny as evidenced by the testimony of Sergeant Gouveia, a member of the PBA negotiating committee since 1965.11/ When asked to describe what happened before the Act required negotiations, Sergeant Gouveia stated:

Generally back then we presented our demands and they came back with what we were getting, that was it. There was really no rap session.12/

The above testimony definitively demonstrates that there was no established practice within the Commission's definition of that phrase.

RECOMMENDATION

Based upon the record and the above-stated findings, the undersigned recommends that sergeants, lieutenants and captains employed in the Kearny Police Department be excluded from the negotiations unit which includes patrolmen.

Respectfully submitted,

/s/James F. Schwerin

Hearing Officer

DATED:	July 12, 1977

Trenton, New Jersey